Commonwealth v. Reyburg, No. 228

No. 228 | Pa. | Jan 14, 1889

Opinion,

Mk. Justice Gbeer:

The only question in this ease is whether cider is a “ vinous ” or “ spirituous ” liquor. It certainly is not “ malt ” or “ brewed,” and as the act of 1887 under which the indictment in this case is framed, defines only these four kinds of liquor as those which require a license to validate their sale, the only inquiry arising is whether cider, which the defendant did sell, is a. vinous or spirituous liquor.

The learned court below charged the jury that there was no-evidence that it was intoxicating, or that it had an intoxicating effect, and therefore the defendant could not be convicted. Without stopping to refine upon the meaning of the word “ intoxicating,” or the degree of alcoholic admixture which is necessary to render any liquid intoxicating, it is only necessary to say that the intoxicating quality is not the one which is prohibited by the act, and hence an issue upon that question does not arise under the indictment. If however any liquor which is sold without license, is either vinous or spirituous, it comes within the prohibition of the act. But the question whether cider is vinous or spirituous is not a question of law to be decided by the court, but a question of fact to be determined by the jury. Of course if there is no evidence on the trial that a liquor is either vinous or spirituous, malt or brewed, it would be the duty of the court to say so to the jury and direct an acquittal for that reason. But if there is evidence on that subject, more than a scintilla, it is for the jury and not. for the court to decide upon it.

Cider is defined by Worcester to be “a fermented liquor made from the juice of apples; formerly used for all kinds of strong liquors except wine.” And by Webster, “ A drink made from the juice of apples. Note. The word was formerly used to signify the juice of other fruits and other kinds of strong liquor except wine, but it is now appropriated to the juice of apples before and after fermentation.” Certainly in common acceptation cider is not understood to be either a vinous or a spirituous beverage, yet when fermented it doubtless. contains a percentage of alcohol sufficient to bring it within the fair meaning of the term “ vinous ; ” and, although not the product of distillation, it may, when mixed with spirituous liquor and sold in that condition under the name of eider, be regarded as “ spirituous ” within the meaning of the prohibition.

The evidence on the trial was very weak indeed. No skilled person having knowledge of the chemical composition of cider was examined, and there was no direct evidence as to whether the liquor sold as cider was vinous or spirituous. There was not even any direct evidence whether the cider sold by tbe defendant was fermented, but there was some testimony that persons using it felt the effects of it the same as if they had been drinking whiskey or beer. We think there was evidence sufficient to carry to the jury the question whether the cider sold by the defendant was a vinous or spirituous liquor. We attach no importance to the argument adduced from a consideration of other acts of assembly. This is a criminal statute and must be strictly construed. If the article sold was a vinous or spirituous liquor the defendant was guilty; if not, he was innocent and should be acquitted: but whether it was or not, was a question for the jury and not for the court. We do not mean to intimate that the mere unfermonted juice of the apple is in any circumstances to be regarded as either a vinous ox spirituous liquor, but we do not know and cannot say, as matter of law, that its character may not be so changed by fermentation as to bring it within the meaning of the term “ vinous.” Of course an admixture with spirits might render the compound “ spirituous.”

Judgment reversed and new venire awarded.